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October 14, 2005.


The opinion of the court was delivered by: P. CASTEL, District Judge


Plaintiff Marvin Rosenblatt brings this action against Christie, Manson & Woods Ltd. ("Christie's"), the international auction house, alleging that Christie's failed to pay him certain "introductory commissions" for sales of art collected by Nelson Seabra, a wealthy Brazilian. Plaintiff alleges that, over the course of approximately twelve years, both before and after Mr. Seabra's death, Christie's sold at auction certain items that had belonged to Seabra. Plaintiff has asserted claims for breach of contract, breach of the duty of good faith and fair dealing, breach of fiduciary duty, fraud, and constructive trust.*fn1

Defendant has moved for summary judgment dismissing the complaint in its entirety. Defendant contends that plaintiff's breach of contract and breach of duty of good faith and fair dealing claims, insofar as they relate to sales that took place between 1992 and 1996, are barred by the statute of limitations. Defendant asserts that plaintiff's claims for breach of fiduciary duty, fraud, and constructive trust must also fail for various reasons. As regards sales in 2003 and 2004 of property consigned by a cousin of Mr. Seabra, defendant contends that any such sales are outside the scope of plaintiff's agreement for commissions and, in any event, were not the direct result of plaintiff's introduction of Christie's to Seabra.

  In addressing defendant's summary judgment motion, I have considered only plaintiff's version of the facts and such other facts as are not disputed by the plaintiff. Where multiple inferences may be drawn from the facts, I considered only the inference most favorable to plaintiff, the non-movant. For the reasons discussed below, defendant's motion is granted.


  Plaintiff is a professional jewelry dealer, who had, at various times beginning in the 1960s and continuing up through the 1990s, consigned jewelry and other property to Christie's for sale at auction. (Rosenblatt Tr. 19-21; Rosenblatt Decl. ¶ 3) Sometime shortly before April 11, 1990, plaintiff met with the then-CEO of Christie's, Charles Allsopp (a/k/a Lord Hindlip), and told Allsopp that Seabra was considering selling the contents of his apartment in Rio de Janeiro. (Rosenblatt Tr. 57-58; Rosenblatt Decl. ¶¶ 15-16) Rosenblatt considered himself "an extremely close friend" of Seabra. (Rosenblatt Decl. ¶ 8) At the meeting between plaintiff and Allsopp, Allsopp agreed, on behalf of Christie's, that, if any sale through Christie's were to come about as a result of plaintiff's introduction, he would be entitled to a commission. (Rosenblatt Decl. ¶ 16)

  The terms of the commission agreement were memorialized in an April 11, 1990 letter, which stated, in relevant part: "This is just to confirm that we will reserve introductory commission for you, should any sales from Mr. Nelson Seabra materialise [sic]. . . ." (Cmplt. Ex. A) Later in 1990, Christie's sent several individuals to Seabra's apartment in Rio de Janeiro, and various inventories and/or appraisals of Seabra's belongings were prepared. (Rosenblatt Decl. ¶ 24) Plaintiff never discussed the appraisals with Seabra, and, after 1991, never again discussed with Seabra the potential sale of the contents of Seabra's apartment. (Rosenblatt Tr. 81-82, 87) Between March 6, 1992 and November 27, 1996, Christie's auctioned 20 lots consigned by Seabra, the total auction price of which was $171,800. After November 27, 1996, Christie's did not auction any items consigned by Seabra. (Falsetta Decl. ¶ 6, Ex. A; Pl. 56.1 Resp. ¶¶ 19-21) Plaintiff was not aware of the 1992-96 sales until 2004. (Rosenblatt Decl. ¶ 29)

  On November 14, 2002, Seabra executed a deed of gift, conveying title to his Rio de Janeiro apartment and all contents thereof to his cousin, Nelson Seabra da Silva Veiga ("Veiga") and Veiga's wife. The deed reserved to Seabra the use of the apartment and its contents during his lifetime. (Veiga Decl. ¶ 8; Salzman Decl. Ex. G; Pl. 56.1 Resp. ¶ 33)*fn2 On the same day that he executed the deed, Seabra died of a heart attack. (Veiga Decl. ¶ 9; Pl. 56.1 Resp. ¶ 29) As a result of Seabra's death, Veiga and his wife became the sole owners of the apartment and the property within, and were free to keep it or dispose of it as they saw fit. (Veiga Decl. ¶¶ 7-8; Pl. 56.1 Resp. ¶ 34)

  Shortly after Seabra's death, Candida Sodre, the Christie's representative for Rio de Janeiro, got in touch with Veiga to inquire about the disposition of the property that was contained within Seabra's apartment. (Sodre Decl. ¶ 18; Pl. 56.1 Resp. ¶ 37) Candida Sodre and her mother, Maria Thereza Sodre (who was Candida Sodre's predecessor as Christie's Brazilian representative), had known Seabra before his death. Seabra had discussed the potential sale of his apartment and its contents with Candida Sodre and other Christie's representatives on numerous occasions during the 1990s, and appraisals were made of certain objects, but no arrangements for such a sale were ever made. (Sodre Decl. ¶¶ 7-15; Pl. 56.1 Resp. ¶ 26) Prior to the commencement of this lawsuit, plaintiff had never heard of either Candida or Maria Thereza Sodre, and Candida Sodre had never heard of plaintiff until after he contacted Christie's in 2004, demanding the commissions that are the basis for this action. (Rosenblatt Tr. 44-45; Sodre Decl. ¶ 25; Pl. 56.1 Resp. ¶¶ 24-25)

  The Sodres met with Veiga and his wife at Seabra's apartment to discuss the potential sale of the apartment's contents in February 2003. Over the course of the next several months, Sodre and other Christie's personnel made a concerted effort to convince the Veigas to sell the contents of the apartment through Christie's. These efforts included updating the appraisals done for Seabra in the late 1990s and appraising certain items that had not previously been appraised. (Sodre Decl. ¶¶ 18-21; Pl. 56.1 Resp. ¶¶ 39-43) The Veigas, after entertaining the idea of keeping the property, or of selling to or through some person or entity other than Christie's, decided in June 2003 to consign the contents of the apartment to Christie's for sale at auction. (Veiga Decl. ¶¶ 10-13; Sodre Decl. Ex. A; Pl. 56.1 Resp. ¶¶ 44-46) Sales of property consigned to Christie's by the Veigas took place from October 22, 2003 through October 19, 2004. The auction price for the items sold totaled approximately $2.8 million. (Falsetta Decl. ¶ 8, Ex. B; Pl. 56.1 Resp. ¶ 53)

  In January 2004, plaintiff, while in the Christie's office in Paris, came across a catalog that depicted "Property from the Collection of Nelson Grimaldi Seabra" that had been auctioned on October 22, 2003. (Rosenblatt Decl. ¶ 30, Ex. D) Upon discovering that property which had once belonged to Seabra had been sold through Christie's, plaintiff, in February 2004, requested an accounting of the commissions and profits made by Christie's on sales of property traceable to Seabra, and demanded payment of unpaid commissions to which he believed he was entitled. (Cmplt. ¶ 20) Christie's responded to plaintiff's demand in a March 22, 2004 letter from its Senior Vice President and General Counsel, wherein it contended that "whatever introduction Mr. Rosenblat [sic] may have provided in 1990 did not result in any sales through Christie's," and that none of the sales in either time period (1992-96 or 2003-04) "fall within the ambit of Lord Hindlip's letter." (Richards Decl. Ex. F) This suit followed.


  Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and quotation marks omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

  It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of its claim or defense, demonstrating that it is entitled to relief. The evidence on each material element, if unrebutted, must be sufficient to entitle the movant to relief in its favor, as a matter of law. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" as to a material fact. Fed.R.Civ.P. 56(e). A fact is material if it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, in order to survive summary judgment, plaintiffs must come forth with more than a mere scintilla of evidence in support of their position; they must come forward with evidence "on which the jury could reasonably find for the plaintiff." Id. at 252. "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly ...

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